Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Tuesday, October 08, 2013

Access Copyright Responds To York Pleading: Why Concerned Canadian Educators Will Be Considering Their Options

Here is Access
Copyright’s Reply and Defence to York’s Counterclaim. All I will say at this point publicly, now
that the pleadings are complete, is more or less what I said in a recent
interview for the Law Times (September 23, 2013 – not available online).

York apparently has no intention of attacking AC’s
pleadings and has, instead, “pleaded over” to a number of issues that might
have called for a motion to strike.

York is apparently going to allow this lawsuit to
morph into a de facto infringement
action, even though AC has no legal status to bring an infringement action.

York appears to have effectively conceded that the
inevitable final tariff, when certified by the Copyright Board, will be “mandatory”.
Its main defence in this litigation seems focussed on the notion that the
tariff is merely “interim”. It does not confront the “elephant in the room” question
as to whether any final tariff for reproduction of literary works – and a fortiori (even more so) an interim
tariff – can be “mandatory” in the “one copy of one work” sense espoused by AC
and endorsed by the Copyright Board.

York appears to be willing to let its fair dealing
guidelines, which are arguably irrelevant to the “mandatory” tariff issue, be
put on trial. If this happens, there is a danger that AC will ask for “findings
of fact” that could, as such, be bullet-proof on appeal.

York appears to be willing to engage in prolonged,
extensive, and expensive discovery that could be disruptive to a large
community at York. Among other consequences of this strategy, the York University
Faculty Association has posted that “On June 28, 2013, all YUFA members received a memo entitled “Document
Preservation Notice” from Harriet Lewis, University Counsel. YUFA believes that
this memo fear mongers in its lack of contextualization. Further, in several
respects the memo overreaches in what it requires or potentially requires of
our members. In response the YUFA Executive unanimously passed a motion to file
a policy grievance.”

While some institutions may be willing to leave
their fate in York’s hands and support York’s strategy, other Canadian
educational institutions ranging from K-12 to elite research universities may be
very concerned about the way this litigation is unfolding and how they could be
adversely affected by its potentially negative outcome. They will also want to consider
whether they wish to operate under a Sword of Damocles while York proceeds in
the manner it has apparently chosen. Thus, they will be considering their
options.